By Michael Rhoads, September 12, 2022

Think of a personal secret you’ve been keeping.  Now imagine that, as part of an investigation, you must divulge that secret. You assume that the investigators will keep the secret confidential, only to find out that personal secret has been published for all to see online. This might sound like a plot line to a teenage drama, but revealing confidential information happens, intentionally and unintentionally, during investigations.

As part of Section 501 of the Rehabilitation Act of 1973, an employee’s medical information should be treated as confidential. Agencies often find themselves on the losing side when an employee’s medical information is disclosed, no matter the intent of the disclosure. A few recent EEO cases illustrate just how costly it can be when agencies improperly disclose or improperly request medical information.

Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 2020001847 (Aug. 16, 2021)

The EEOC increased the amount of non-pecuniary damages from $25,000 to $70,000. The complainant, a city carrier at the United States Postal Service, had his medical information displayed publicly on the agency form used to request overtime or auxiliary assistance. The manager instructed the complainant to put his medical information on the form. Also, the complainant was not given a reasonable accommodation for his medical condition. The agency gave him a light-duty assignment, but the work he was given was completed in a few hours each day, and not over a full day’s work. The complainant was forced to use sick leave to make up the balance of the day.

The agency had not complied with orders from the EEOC in a previous case, which affected the outcome of this case. In the previous case brought by the complainant in 2017, the EEOC found the agency failed to make a good faith effort to accommodate and granted him compensatory damages. The agency opined that it had accommodated the complainant sufficiently in 2017. In this subsequent case, however, the EEOC disagreed with the agency over the accommodation.

The EEOC found the agency’s accommodation to be insufficient and increased the non-pecuniary damages from $25,000 to $70,000.

The EEOC wanted the agency to conduct a supplemental investigation to determine the compensatory damages, which it did not.  Also, the agency failed to train and discipline the management official responsible for the disclosure of the complainant’s medical information. A timelier compliance with the EEOC’s orders, and especially a timelier accommodation, might have saved the agency from the increase in non-pecuniary damages.

Salvatore K. v. Dep’t of Justice, EEOC Appeal No. 0120182095 (Jun. 23, 2021)

A contract company working with the US Marshals Service terminated a court security officer (CSO). The CSO is contracted to provide “security to the federal court and its judicial officers, witnesses, defendants, and attorneys.” The contract company is obligated to have their CSOs “… undergo and pass an annual examination …”  The complainant was diagnosed with borderline Type II diabetes in 2005.

During the annual examination in August 2013, a doctor cleared the complainant for duty as “medically qualified.”  A few months later, a second doctor reviewed the report and issued a medical review form to the complainant requesting ten different types of medical data from the complainant’s hemoglobin measures to a complete history of his medications. The first doctor responded to the second doctor’s medical review form by declaring the complainant medically fit for duty. The second doctor wasn’t satisfied with that response and issued a follow-up medical review form requesting an additional eleven different types of medical data.

The complainant did not comply with one of the initial requests to test his blood sugar four times a day from his fingers since it would interfere with his ability to hold a gun. In June 2014, the complainant’s district supervisor asked if he had any additional information to submit to the agency. The complainant declined to offer any further medical data. Six days later, he was terminated from his CSO position for failing to provide all documentation to determine his medical qualification.

In March 2015, the complainant filed an EEO complaint on the basis of disability, claiming the agency “subjected him to harassing, excessive, and unduly burdensome medical assessments and to requests for documentation.” The AJ issued a decision without a hearing in favor of the agency. On appeal, the EEOC reversed the AJ’s decision and found in favor of the complainant.

The EEOC found the agency did not prove its case for a few reasons. The complainant was able to perform his duties and was not a direct threat to himself or others.  The agency relied upon too broad of a series of generalized medical requests and not an individualized assessment of the complainant or any observations of his work performance.

The EEOC also took the guidance from the American College of Occupational and Environmental Medicine (ACOEM) to task. The ACOEM’s guidance violated the Rehabilitation Act by relying on generalized stereotypes rather than individualized assessments, which is required by the Rehabilitation Act.

The point of these two cases is clear: An employee’s medical information is confidential. There are legitimate, business-based reasons to request medical information. However, that information should be treated more like a game of Operation than Go Fish.

To learn more about how you and your agency can properly request medical records from an employee, join FELTG for Absence, Leave Abuse & Medical Issues Week, September 26-30 from 12:30-4:30 pm ET each day.

Stay safe, and remember, we’re all in this together. [email protected]

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